Opinion

Hicks v. City Of Chicago

Court: District Court, N.D. Illinois
Filed: Mar 19, 2020
Cited by: 0 cases
Authority: More cited than 20.9%

“The continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.” (emphasis added)

How later courts described this case

“The continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.” (emphasis added)
“Fellow law enforcement personnel are among the witnesses whose accounts the arresting officer may rely upon.”
holding that an otherwise-lawful seizure did not violate the Fourth Amendment by virtue of a narcotics dog sniff because there is no legitimate, constitutional interest in possessing contraband
“[A] party forfeits any argument it fails to raise in a brief opposing summary judgment.” (cleaned up)

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Patricia Hicks, Lorenzo Smith, )

and Jasmin McBride, )

)

Plaintiffs, ) No. 15 C 6852

)

v. )

) Judge Edmond E. Chang

Cook County Sheriff’s Office, Officer Murphy, )

Officer Mousel, Officer Dwyer, Officer Doyle, )

Officer Mears, Officer O’Malley, Officer Gosling,

and the Village of Lynwood, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Shortly after midnight on July 2, 2015, Lorenzo Smith and Jasmin McBride

were pulled over by Cook County Sheriff’s police on the south side of Chicago. This

traffic stop gave rise to two civil-rights lawsuits—one by McBride and Smith, and

another by Patricia Hicks, McBride’s mother—which were eventually consolidated in

this case. See R. 130.1 In their Joint Amended Complaint, the Plaintiffs named the

Cook County Sheriff’s Office and the Village of Lynwood as defendants, along with

several of their respective police officers. R. 121, Joint Am. Compl. All three Plaintiffs

brought an illegal-seizure claim and a failure-to-intervene claim under 42 U.S.C.

§ 1983 (Counts 1 and 3), as well as a claim for indemnification against the Village of

Lynwood and the Cook County Sheriff’s Office under 745 ILCS 10/9-102 (Count 5);

1Citations to the record are noted as “R.” followed by the docket number.

McBride and Hicks also brought an illegal-search claim (Count 2); and Hicks brought

a state-law claim for intentional infliction of emotional distress (Count 4).2 Id.

In May 2019, the Defendants filed three separate motions for summary

judgment: one motion by the Cook County Sheriff’s Office, Sergeant Michael Dwyer,

Officer Robert Mousel, and Officer James Gosling (the “County Defendants”), R. 252;

another motion by Lynwood Officer Michael Mears and the Village of Lynwood, R.

257; and the third motion by Cook County Sheriff’s Officers Michael Doyle and Adam

Murphy (who are represented separately from the other Cook County defendants), R.

260.3 For the reasons discussed below, the Defendants’ motions are granted in part

and denied in part.

I. Background

In deciding the Defendants’ motions for summary judgment, the Court views

the evidence4 in the light most favorable to the Plaintiffs, the non-movants.5

2The Court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental

jurisdiction over the state-law claims under 28 U.S.C. § 1367.

3The Defendants’ summary judgment motions and opening briefs will be cited only by

their respective docket numbers.

4Citations to the parties’ Local Rule 56.1 Statements of Fact are identified as follows:

“County DSOF” for the Cook County Sheriff’s Office, Sgt. Dwyer, and Officers Mousel and

Gosling [R. 254]; “Mears/Lynwood DSOF” for Officer Mears and the Village of Lynwood [R.

258]; “Murphy/Doyle DSOF” for Officers Murphy and Doyle [R. 262]; and “PSOF” for the

Plaintiffs’ combined additional statement of facts [R. 272]. The Plaintiffs’ responses to the

various statements of fact are identified as “Pls.’ Resp.” followed by the appropriate

statement of fact—for example, “R. 266, Pls.’ Resp. County DSOF.” The Defendants’ combined

response to the Plaintiffs’ combined additional statement of facts is identified as “Defs.’ Resp.

PSOF” [R. 283].

5The Plaintiffs failed to cite to either the record or the Local Rule 56.1 Statements

when making factual assertions in their combined response brief. See generally R. 271, Pls.’

Resp. Br. The County Defendants argue that this is grounds to grant summary judgment in

their favor, or at least to reject wholesale the factual assertions in the Plaintiffs’ brief.

Similarly, Officer Mears and the Village of Lynwood ask the Court to strike the facts

referenced in the Plaintiffs’ response brief. R. 281, Mears/Lynwood Reply Br. at 3-4. It is true

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The facts

narrated here are undisputed unless otherwise noted.6

In the early morning hours of July 2, 2015, Lorenzo Smith was driving a blue

Oldsmobile belonging to his girlfriend, Jasmin McBride, who was asleep in the front

passenger seat. R. 254, County DSOF ¶¶ 2, 8, 11; R. 265-26, CCSPD Mem. at 17; R.

254-3, Smith Dep. at 142:7-16. Smith was also transporting a passenger (who was in

the back seat) for a ride-share service. See County DSOF ¶ 8; R. 272, PSOF ¶ 1.

Around 12:53 a.m., Smith was pulled over by a Cook County Sheriff’s Police

Department car while driving eastbound on 69th Street near Ashland Avenue in

Chicago. See CCSPD Mem. at 5; R. 268, Pls.’ Resp. Mears/Lynwood DSOF ¶ 4. Driving

that the better practice is to cite the 56.1 Statements (and, in this Court’s view, the best

practice is to parallel cite). But the rule does not explicitly require it, nor does this Court’s

Standing Order on Summary Judgment motions, so the Defendants’ requests are denied.

6Murphy and Doyle also argue that the Court should deem Paragraphs 4, 18, 20-22,

and 28 of their Statement of Facts [R. 262] admitted. R. 282, Murphy/Doyle Reply Br. at 2-3.

That request is denied in large part. Paragraphs 4, 18, 21-22, and 28 cannot be deemed

admitted wholesale because the Plaintiffs properly dispute at least some of the factual

allegations with citations to the record. See R. 267, Pls.’ Resp. Murphy/Doyle DSOF ¶¶ 4, 18,

21-22, 28. Although Murphy and Doyle take issue with the fact that the Plaintiffs’ responses

often cite the Plaintiffs’ own statement of additional facts (instead of directly to the record),

Local Rule 56.1 does not explicitly bar this practice. Nevertheless, the last sentence in

Paragraph 18—that “Smith had his cellphone with him while he was in the police vehicle[,]

Murphy/Doyle DSOF ¶ 18—is deemed to be admitted, because the paragraph that the

Plaintiffs cite in response (and the underlying evidence) fails to adequately dispute it. See

Pls.’ Resp. Murphy/Doyle DSOF ¶ 18; PSOF ¶ 16. For the same reason, all the statements in

Paragraph 4 are deemed to be admitted, except for the allegation that “Officer Doyle was not

present for the traffic stop[,] see Pls.’ Resp. Murphy/Doyle DSOF ¶ 4; all the statements in

Paragraph 21 are deemed to be admitted, except for the allegation that “Hicks did not seem

upset at all,” id. ¶ 21; and the statement in Paragraph 22 that “[t]he two didn’t speak to each

other” is admitted, id. ¶ 22. In addition, Paragraph 20 of Murphy and Doyle’s Statement of

Facts is admitted in its entirety because the Plaintiffs fail to cite to any part of the record.

See id. ¶ 20.

7With respect to the Cook County Sheriff’s Police memos (as well as the text messages

between Murphy and Hicks, R. 254-13), this Opinion will cite to the page numbers assigned

by the electronic filing system as opposed to the internal Bates numbers, for convenience’s

sake.

the CCSPD car was Officer Adam Murphy, accompanied by Officer Robert Mousel in

the front passenger seat (also of the CCSPD) and Officer Michael Mears (from the

Village of Lynwood) in the backseat; all three officers were assigned to the Cook

County Sheriff’s Street Crimes Suppression Unit. See County DSOF ¶ 9; R. 258,

Mears/Lynwood DSOF ¶¶ 1-2. According to the Defendants, Officers Murphy and

Mousel saw Smith make a right turn without properly signaling, at which point

Murphy initiated the traffic stop. County DSOF ¶ 10; Mears/Lynwood DSOF ¶ 6.

Although the Plaintiffs assert that Smith did not make a turn at all, see, e.g., R. 266,

Pls.’ Resp. County DSOF ¶ 10, Smith testified (during his deposition) that he did, at

some point, have to turn right onto 69th Street, Smith Dep. at 137:18-138:3. The

confusion appears to derive from Smith’s testimony just a few moments prior. Defense

counsel had asked Smith what McBride was doing when they were pulled over, and

Smith answered that she was in and out of sleep. Id. at 136:24-137:5. Then counsel

asked, “Had you just made a turn onto 69th Street?”, and Smith answered, “No.” Id.

at 137:6-8. Ultimately, although there is no dispute that Smith did make a turn at

some point, the circumstances of what the officers saw (and how they saw it) are still

relevant, as discussed later.

Moving on to the traffic stop itself, the parties dispute who was there. The

individual Defendants deny that all six of them were present together “at any one

point during the events at issue[,]” including when Smith and McBride were pulled

over. R. 283, Defs.’ Resp. PSOF ¶ 2. Although it is undisputed that Murphy, Mousel,

and Mears were in the car that pulled Smith and McBride over, Pls.’ Resp. County

DSOF ¶¶ 9-10, Murphy testified that Sergeant Dwyer was also there (though in a

different vehicle), see R. 254-9, Murphy Dep. at 113:9-114:6. In contrast, Dwyer

testified that he had been at the police department’s command post when Smith and

McBride were brought in. R. 254-7, Dwyer Dep. at 57:6-58:1. In contrast yet again, in

their Answer to the Plaintiffs’ Joint Amended Complaint, the individual defendants—

including Officers Michael Doyle and James Gosling—admitted to conducting the

traffic stop. R. 272-3 at ¶ 13. But like Dwyer, Officers Doyle and Gosling both testified

that they were not at the traffic stop. See R. 254-10, Gosling Dep. at 55:16-59:14; R.

254-11, Doyle Dep. at 44:17-25.

In any event, it is undisputed that when Officer Murphy approached Smith

and asked for Smith’s license and registration, Smith admitted that he did not have

a valid driver’s license. County DSOF ¶ 13. Murphy then asked Smith to get out of

the Oldsmobile, placed Smith under arrest, and took him to stand near the back of

the police car with Officer Mears. Id. ¶¶ 13-14. After this, Murphy conducted a pat-

down search of McBride and collected her personal items. Id. ¶ 15. According to the

Defendants, Murphy found and recovered a quarter-sized package containing eleven

pieces of an off-white, rock-like substance from McBride’s pocket, which Murphy

suspected to be crack cocaine. Id.; Mears/Lynwood DSOF ¶¶ 19-20; Defs.’ Resp. PSOF

¶ 5. McBride disputes this discovery, see, e.g., Pls.’ Resp. County DSOF ¶ 15,

testifying that she did not have any crack cocaine on July 2, R. 254-2, McBride Dep.

at 306:20-22, and indeed that she had never used or possessed crack cocaine, id. at

174:16-20. None of the other Defendants saw Murphy actually recover the crack

cocaine from McBride’s pocket. See, e.g., R. 254-6, Mears Dep. at 147:23-148:18; R.

254-8, Mousel Dep. at 135:16-136:8. Mears testified that during the traffic stop, after

Murphy had allegedly recovered the cocaine, Murphy came up to Mears “and just

dangled it kind of by … the knotted end,” telling Mears that “[s]he had rock on her.”

Mears Dep. at 145:10-146:12. But Smith—who was allegedly standing with Mears at

the time—testified that that he did not see a knotted plastic bag at the traffic stop.

Smith Dep. at 320:22-321:2. Similarly, McBride testified that Murphy “never

mentioned anything about any narcotics,” McBride Dep. at 364:22-365:6, and that

she did not find out about the officers’ claim that she had drugs on her until around

two years later, id. at 61:4-7, 364:19-21. In any case, after allegedly recovering the

crack cocaine from McBride, Murphy placed her under arrest. County DSOF ¶ 18.

Eventually, both Smith and McBride were placed in the backseat of the police

car and taken to the Sheriff’s Office Command Center (which the parties sometimes

call the “Command Post”) at 59th and Wood. County DSOF ¶¶ 18-19. The Command

Post was an abandoned parking lot where Cook County had several trailers for

booking arrestees, storing evidence, and serving as the command center for

supervisors and staff. See PSOF ¶ 10; Murphy Dep. at 129:1-14. According to Murphy,

while he was filling out paperwork at the Command Post, McBride—supposedly of

her own accord—told him that she knew the location of some firearms that she

wanted to get off the street. Murphy Dep. at 132:20-133:4, 135:21-136:5, 192:15-25;

County DSOF ¶ 21; Mears/Lynwood DSOF ¶ 31. Murphy testified that he promptly

reported what McBride said to Sergeant Dwyer (Murphy’s supervisor at the time).

Murphy Dep. at 180:23-181:7; County DSOF ¶ 21. See also Mears/Lynwood DSOF ¶

31; Defs.’ Resp. PSOF ¶ 12. But the Plaintiffs have a 180-degree-different version of

events. McBride testified that, after Murphy handcuffed her on-location at the traffic

stop, he asked her whether she was on either parole or probation. McBride Dep. at

351:2-4, 354:8-16, 356:10-13. After Murphy found out that she was on probation,

Murphy told McBride to get him three guns, two for her (that is, to release her) and

one for the car (that is, so the car would not get towed). Id. at 138:12-16, 144:20-24;

see also id. at 165:17:21 (McBride testifying that Murphy said, “okay, this is the plan:

You get me some guns, and we will not tow your car. He said, two for you and one for

the car.”). McBride also testified that no one else was “present” for this conversation,

id. at 356:13-16, but noted that Smith was handcuffed near the police car with

another officer, id. at 351:16-352:1, 354:17-20. For his part, Smith testified that after

McBride was arrested and placed in the police car, the police officer who arrested

him—who the parties agree was Murphy—came over and asked Smith if he loved

Jasmin. Smith Dep. at 153:3-7. When Smith answered yes, Murphy told him that in

order to get Smith, McBride, and the car “‘out this situation,’ he [Murphy] would need

three handguns.” Id. at 153:7-15.8

8Defendants contend that “McBride admits that … any conversation with Smith

regarding guns did not occur until they were at the command post.” Defs.’ Resp. PSOF ¶ 9.

But the testimony that they cite, McBride Dep. at 184:7-17, 356:14-16, does not support that

contention. Although McBride testified that Murphy allowed Smith to drive away later that

night without a license and that Murphy told Smith, “we’re going to see how much you love

her[,]” it is far from clear that McBride was testifying as to when Murphy made that

statement, nor does McBride’s testimony preclude the possibility that Murphy was simply

repeating his earlier statement. See id. at 184:7-17. Similarly, McBride’s testimony that no

one else was present during her conversation with Murphy at the traffic stop does not

The parties also dispute who spoke with Smith and McBride at the Command

Post. The Plaintiffs assert that Officers Murphy, Mousel, and Dwyer all talked to

McBride and Smith. PSOF ¶ 11. Mears testified that when the group arrived at the

Command Post, he saw Murphy, Mousel, and Dwyer talking to Smith and McBride

for around 15 minutes. Mears Dep. at 157:2-9, 157:22-159:5. Doyle testified that,

although he did not see them talking, he did see several officers standing around

Smith and McBride at the Command Post, including Dwyer and Murphy. Doyle Dep.

at 36:1-37:11.

Meanwhile, it is undisputed that while she was in the back of the police car at

the Command Post, McBride called Gerald “Pudge” Adams, an ex-boyfriend of hers,

and told him that she needed some guns or else she would go to jail. Defs.’ Resp. PSOF

¶ 13; McBride Dep. at 44:5-14, 69:18-19, 70:3-20. According to McBride, when the

police “told [her] to call somebody,” she called several numbers first, McBride Dep. at

109:14-111:15, but Pudge was the kind of person who could get “whatever you ask[,]”

id. at 110:8-16; County DSOF ¶ 24. Pudge responded that he knew where she could

get the guns, but that someone would have to go pick them up. McBride Dep. at 70:21-

71:5; Defs.’ Resp. PSOF ¶ 13; Pls.’ Resp. Mears/Lynwood DSOF ¶ 35. After this,

McBride called her mother—Plaintiff Patricia Hicks—and told her to call Pudge.

McBride Dep. at 71:11-14; Mears/Lynwood DSOF ¶ 38; R. 262, Murphy/Doyle DSOF

¶¶ 5, 9-10.

preclude the existence of a separate conversation between Murphy and Smith. See id. at

356:14-16.

Indeed, McBride called her mother several times that night. McBride Dep. at

368:1-8; County DSOF ¶ 26. One of the phone calls, around 1:45 a.m., was recorded,

and McBride can be heard saying that “they on their way to come get you now.” R.

254-12, Exh. K (Audio Recording). Hicks said that she believed that she could get one

gun from Pudge, but that she did not know if she could get two, at which point

McBride responded that the guns belong to Pudge. Exh. K (Audio Recording); see

County DSOF ¶ 31; Murphy/Doyle DSOF ¶¶ 8-10. According to Hicks, McBride also

told her that McBride was being held by police and that the police were “going to give

[McBride] a case, if [she] didn’t get any guns, because [she’s] on probation.” R. 254-4,

Hicks Dep. No. 1 at 80:1-12. Hicks also testified that, while she was on the phone

with her daughter, she could hear unidentified police in the background telling

McBride what to say, and that McBride relayed messages from the police to Hicks.

Hicks Dep. No. 1 at 84:8-17, 197:5-15, 198:15-199:13; PSOF ¶ 14. In fact, according

to McBride, the police officers were “talking through [her] because [she] was on the

phone with [her] mom”; they told Hicks that they had “a certain amount of minutes

because [they had] to shut this down” so if Hicks promised to give the officers the

guns, then they would hold McBride until Hicks got the guns the next day. McBride

Dep. at 180:1-10. McBride also testified that she never heard her mom agree to go

with the officers, but the officers “pretty much” “demanded” that Hicks go with them.

Id. at 182:2-9. When Hicks told McBride on the phone that “it was real late, and she’s

scared to go out[,]” a police officer said, “I’m going to come get you.” Id. The

Defendants deny that any officer told McBride what to say to Hicks, but they offer no

evidence to conclusively dispute this. Defs.’ Resp. PSOF ¶ 14. Although the audio

recording does not contain any statements by police, there is no evidence to foreclose

the possibility that this occurred in one of the other phone calls between Hicks and

her daughter. See id.

As for Murphy, he testified that Dwyer and McBride made the arrangements

for picking up the firearms. Murphy Dep. at 183:4-6; Defs.’ Resp. PSOF ¶ 12.

Although the Defendants dispute “the characterization of the agreement as an

‘exchange of firearms for Ms. McBride’s freedom[,]’” they do admit that Dwyer, as

supervisor, “had to approve the plan to pick up illegal guns.” Defs.’ Resp. PSOF ¶ 12.

In fact, McBride testified that there was a man, other than Murphy, who appeared to

be “running” the operation; this man, as well as the officers that were in the car and

the officers who picked up her mother, all talked to her at the Command Post about

obtaining the guns. See McBride Dep. at 178:9-20, 180:11-20. At one point, right after

Murphy spoke to the man who was “running” things, McBride testified that Murphy

said to her, “I don’t care how she gets it. We just need them.” Id. at 361:21-362:11. In

contrast, Dwyer, Mousel, and Gosling all testified that they had no knowledge of

Murphy’s discussions with Hicks about the firearms. County DSOF ¶ 67; Dwyer Dep.

at 111:9-12; Mousel Dep. at 218:7-12; Gosling Dep. at 6:12-14, 142:3-15. See also, e.g.,

Mears Dep. at 109:22-111:6 (Mears testifying that it was his understanding that

Hicks had agreed to tender the stolen guns to the officers, and that McBride told

Dwyer and Murphy about this arrangement at the Command Post). But the

Defendants do admit that Dwyer, as supervisor, assigned Mears and Doyle to pick up

Hicks and take her to go get the guns. Defs.’ Resp. PSOF ¶¶ 12, 17. Nevertheless,

Dwyer insists that he did not give Doyle or Mears any other instructions, and that all

he knew was that Hicks had guns, was hiding guns, or knew the location of illegal

guns. County DSOF ¶¶ 36-37; Dwyer Dep. at 71:15-21, 76:5-12.

Before Mears and Doyle went to get Hicks, one of the police officers told Smith

(according to him) to go get the guns from Pudge himself, but Smith said that he did

not know where Pudge lived, and that he did not know Pudge “like that[,] to be

knocking on his door.” Smith Dep. at 176:10-21. Although it is unclear how it came

about, Smith ultimately ended up going with the officers to pick up Hicks. Id. at

178:22-24 (Q: “At some point, did you agree to go with the officers anywhere?” A: “To

pick up Patricia, yeah.”). In fact, even though both Mears and Doyle testified that

Smith did not go with them, Mears Dep. at 161:19-23; Doyle Dep. at 38:21-39:2, the

Defendants do not dispute that Smith was there, see, e.g., Defs.’ Resp. PSOF ¶¶ 16-

17; Murphy/Doyle DSOF ¶ 18. See also Hicks Dep. No. 1 at 137:13-138:2; Smith Dep.

at 184:21-24 (both Hicks and Smith testifying that Smith was in the car). Also, Smith

testified that his hands were handcuffed to the front (as opposed to behind his back,

or to any objects) during the ride with Mears and Doyle (this is relevant for reasons

explained later in the Opinion). See Smith Dep. at 193:2-18.

Once the officers got to Hicks’ house, Smith called Hicks on his cell phone to

let her know that they had arrived. Pls.’ Resp. County DSOF ¶ 42; R. 267, Pls.’ Resp.

Murphy/Doyle DSOF ¶ 21. Hicks then came outside and got into the backseat of the

officers’ unmarked police SUV, where Smith was also sitting. Pls.’ Resp. County

DSOF ¶ 42; Pls.’ Resp. Murphy/Doyle DSOF ¶ 21. Mears was driving, and Doyle was

in the front passenger seat. Pls.’ Resp. County DSOF ¶ 40; Pls.’ Resp. Mears/Lynwood

DSOF ¶ 55. Hicks testified that when she got in the car, the officer in front of her—

that is, Doyle—told her that McBride would be charged with a crime if she did not

come up with guns. See Hicks Dep. No. 1 at 226:2-8; see also R. 254-5, Hicks Dep. No.

2 at 17:24-18:4 (testifying that she got into the back passenger side of the car). But

even though McBride had already informed Hicks that Pudge had guns she could pick

up, Hicks initially told Mears and Doyle that she did not know where to get them.

Pls.’ Resp. County DSOF ¶ 46; Hicks Dep. No.1 at 135:18-136:1. One of the officers

then urged, “Look in your phone. Can’t you call somebody?” Pls.’ Resp. County DSOF

¶ 46; Hicks Dep. No. 1 at 136:2-3; Pls.’ Resp. Mears/Lynwood DSOF ¶ 57. Hicks then

pulled out her phone and, as she scrolled through her contacts, Doyle watched and

asked her for information about various people on her contact list. Hicks Dep. No.2

at 23:7-16, 25:8-26:3; Pls.’ Resp. Mears/Lynwood DSOF ¶ 57. But see Smith Dep. at

198:16-22 (Smith testifying that he did not see Hicks take out her cellphone when she

got in the car). When Hicks got to the contact number for Pudge, Hicks told Doyle

that Pudge was McBride’s “baby daddy.” Hicks Dep. No. 1 at 136:15-21. See also Pls.’

Resp. County DSOF ¶ 49; Pls.’ Resp. Murphy/Doyle DSOF ¶ 12. Hicks testified that

Doyle then told her to call Pudge, so she did, putting the call on speakerphone. Pls.’

Resp. Mears/Lynwood DSOF ¶ 58; Hicks Dep. No. 1 at 136:15-24; Hicks Dep. No. 2

at 26:10-12, 26:24-27:4, 28:17-20. Pudge then gave Hicks an address to go to for the

firearms. Hicks Dep. No. 1 at 136:22-24; Pls.’ Resp. County DSOF ¶ 51; Pls.’ Resp.

Mears/Lynwood DSOF ¶ 58.

The Defendants insist that Officers Mears and Doyle never physically touched

Hicks’ phone, citing Hicks’ testimony that she was “more than positive” that she was

holding the phone the entire time. See County DSOF ¶¶ 47-48; Mears/Lynwood DSOF

¶ 59; Hicks Dep. No. 2 at 42:18-20. But the Plaintiffs dispute this, pointing to Doyle’s

testimony that he “believe[d] her phone was set up front on the console” of the car, a

common practice to ensure that “no one can make calls … [to] ambush” the officers.

PSOF ¶ 20; Doyle Dep. at 104:13-25. See also Hicks Dep. No. 2 at 42:22-24 (Hicks

testifying, “I don’t remember if they ever took it out of my hand, I don’t remember. I

remember us going through it together.”).

In any case, after the phone call with Pudge, the officers drove Hicks to a house

on Indiana Street. Defs.’ Resp. PSOF ¶ 21. The officers parked about a block away

from the house, Hicks Dep. No. 2 at 32:6-21, and Smith testified that it was not

possible to see Hicks walk up to the house from that vantage point, Smith Dep. at

200:3-18. See also Mears Dep. at 163:17-23 (Q: “Did you follow her to see where she

was going?” A: “No, sir.” Q: “Why not?” A: “Because I was a white guy in an all black

neighborhood, that would have stuck out like a sore thumb.”). Smith also testified

that the doors of the police SUV were locked from the inside, so the officers had to get

out and open the door for Hicks, Smith Dep. at 199:16-21; but Hicks testified that she

was able to simply open the door herself, Hicks Dep. No. 2 at 46:12-14. Hicks’

demeanor before she went up to the house, as well as her overall voluntariness, is

also disputed. The Defendants contend that Hicks never said that she did not want

to go with them, nor did she ever express any fear or unwillingness. See, e.g., County

DSOF ¶ 32; Hicks Dep. No. 2 at 33:11-17); Defs.’ Resp. PSOF ¶ 21; Mears Dep. at

163:24-25. But the Plaintiffs present a different story. McBride testified that Hicks

told the officers on the phone that she was afraid to go out. PSOF ¶ 15; McBride Dep.

at 182:2-4. Hicks testified that she told the officers she was scared to get out of the

car, Hicks Dep. No. 1 at 220:3-10, and that one of the officers seemed to have seen

her crying, Hicks Dep. No. 2 at 48:5-9. And Smith testified that Hicks was shaky and

angry. Smith Dep. at 197:18-23.

Returning to the house on Indiana Street—when Hicks went to the front door

and relayed Pudge’s message to the residents of the house, a man swore at her and

threatened her, causing her to back away and leave. Defs.’ Resp. PSOF ¶ 22. But

Hicks did not tell the officers what actually happened; instead, out of fear, she told

them that nobody answered the door. Id. What happened next is (again) disputed.

According to Smith, when they got back to Hicks’ house, the officers told Smith and

Hicks that “if [they] want[ed] to see Jasmin and if [Smith] want[ed] to stay free, [they]

better have three guns by the time [the officers] get out of court” the next day. Smith

Dep. at 212:24-213:5; see PSOF ¶ 23. Although Smith could not remember which

officer said this, he did testify that “[b]oth of them was really saying the same thing.”

Smith Dep. at 213:18-22. Then, when Mears and Doyle took Smith back to the

Command Post, they released him and gave him the keys to McBride’s car (even

though he had a suspended license), telling him to “have them guns tomorrow.” Id. at

216:10-13, 217:3-7; see Defs.’ Resp. PSOF ¶ 26. It is worth noting that, although the

Defendants deny making any statement like that to Hicks, they provide no evidence

to dispute that these statements were made to Smith. See Defs.’ Resp. PSOF ¶¶ 23,

26. See also Doyle Dep. at 62:6-63:13; Mears Dep. at 168:13-24.

When the officers returned to the Command Post, Mears reported to Murphy

that Hicks was not able to get any guns. Defs.’ Resp. PSOF ¶ 25. Meanwhile, Hicks

testified that shortly after she was dropped off at home, a police officer contacted

her—via a phone call, she believed—and told her she had another chance to “save”

her daughter. Hicks Dep. No. 1 at 228:14-23; PSOF ¶ 27. Specifically, the officer

instructed her to get up and do what she had to do to get the guns, and that he would

hold McBride until she did. Hicks Dep. No. 1Hicks Dep. No. 1 at 228:14-23; PSOF ¶

27. Hicks understood this person to be Murphy, based in part on her discussion with

him later that day. Hicks Dep. No. 1 at 233:2-21. See PSOF ¶ 27; Pls.’ Resp.

Mears/Lynwood DSOF ¶ 73 (Plaintiffs admitting that, after returning to the

Command Post, Mears had no further involvement with the Plaintiffs). On the other

hand, Murphy testified that his first communication with Hicks was not until later

that day, when she contacted him. Murphy Dep. at 198:16-199:13; see Defs.’ Resp.

PSOF ¶ 27.

It is undisputed, however, that sometime after Mears spoke with Murphy back

at the Command Post, Murphy and Gosling took McBride to lockup for the night on

Dwyer’s orders. See Defs.’ Resp. PSOF ¶ 29; Pls.’ Resp. County DSOF ¶ 34. According

to Murphy, Dwyer instructed them to hold McBride so that the remaining

paperwork—“criminal complaints, felony 101s, … paperwork for Chicago to bring

them into the system, their transmittal”—could be finished the next day. Murphy

Dep. at 189:11-20, 191:16-19; see County DSOF ¶¶ 34-35. Both Murphy and Gosling’s

CCSPD memos state that they dropped McBride off at lockup around 3:00 a.m. See

CCSPD Mem. at 4-5. Of course, the Plaintiffs dispute the reason why McBride was

locked up. Aside from the various efforts to obtain guns, the Plaintiffs also point to

McBride’s arrest report. PSOF ¶ 28; Pls.’ Resp. County DSOF ¶ 35. Specifically, then-

Sergeant John Sullivan approved McBride’s arrest report around one or two o’clock

in the morning, and at that time, the report stated that McBride was “released

without charges.” R. 265-15, Sullivan Dep. at 44:6-11, 44:22-45:2. Although the

Defendants disagree with the Plaintiffs’ interpretation of this fact, they offer no

evidence to dispute either the content of the report or Sullivan’s testimony. See Defs.’

Resp. PSOF ¶ 28.

Back at home, after going back to sleep for a while, Hicks woke up sometime

that same morning of July 2 and began searching for a gun. Hicks Dep. No. 1 at

261:16-23. Hicks described going to a corner on Wabash Street, near Prairie and 69th

Street in Chicago, and walking up to four young guys who were standing there and

asking them for help. Id. at 172:11-173:3. She “broke down and let them know what

was going on, and they told [her] they was aware of it like it was normal.” Id. at 173:3-

5. One of those guys ended up selling Hicks a gun for $500.9 Id. at 319:15-322:16.

9Although Hicks confirmed that no police officer had told her to actually buy a gun at

that point, she bought the guns anyway because Murphy told her to “do whatever [she]

need[ed] to do” if she wanted her daughter; plus, she “knew [she] had to buy it” because

Hicks called Murphy afterwards to tell him, but he did not answer the call. PSOF ¶

31. At 11:28 a.m., Murphy sent a text message to Hicks apologizing for not answering

and letting her know that he would call as soon as he was done with court. R. 254-13,

Hicks/Murphy Text Msgs. at 6. When Hicks texted Murphy to say that she only got

one gun, he responded, around 11:31 a.m., that: “[t]he deal was 2 for your daughter

and 1 for the car, the one last night was just to get her out right then.” Id. A little

over an hour later, Murphy added, “I will be out that way around 330, u need to have

those items so I can release Jasmin.” Id. at 7. Hicks told him that she had a second

one but needed to “come up with 100 more dollars”; she then asked him if he would

settle for two if she promised to get him a “third one later.” Id. at 7-8. Murphy agreed,

telling Hicks, “OK, if you definitely have 2, I will bring Jasmin back with me to grab

the 2.” Id. at 7. He also said that Hicks could take her time, because it would take

him some time to “get home, change, and get Jasmin from holding.” Id. at 8. But just

30 minutes later, Hicks texted Murphy that she got the second gun. Id.10

According to Murphy, when he notified Dwyer that Hicks had gotten the guns,

Dwyer “advised [him] to release Jasmin pending the results from the crime lab.”

Murphy Dep. at 211:9-212:24. But Murphy also testified that his understanding of

the agreement was that if Hicks got the guns, then McBride would be released.

Murphy Dep. at 216:15-18. And in fact, when she was released, McBride remembers

“[a]in’t nobody going to give you no gun.” Hicks Dep. No. 1 at 262:24-263:5, 264:11-267:18

(emphasis added).

10The parties do not dispute the authenticity or content of these text messages, nor

the fact that they were between Hicks and Murphy. See Defs.’ Resp. PSOF ¶ 31. It is also

undisputed that Smith gave Hicks money to help her purchase the guns (although it is not

clear when in the timeline this happened). See id. ¶ 32.

Murphy telling her, “your mom bought firearms. She must really love you. I’m taking

you home.” McBride Dep. at 50:19-22. But afterwards, instead of driving her home,

Murphy and Gosling drove McBride to an alley near Prairie and 69th Street. There,

around 4 p.m., the officers recovered the firearms from a bag that Hicks had placed

in the alley near some garbage cans. See Pls.’ Resp. County DSOF ¶ 75; Hicks/Murphy

Text Msgs. at 3; Defs.’ Resp. PSOF ¶ 36. Although Murphy contends that he told

McBride she was free to go at any time, he also testified that McBride did not get out

of the car until after the officers had recovered the firearms. Murphy Dep. at 215:18-

21. See R. 272-16, Smith 07/02/15 Alley Video; Gosling Dep. at 108:20-109:5 (Gosling

testifying that he has no memory of anyone telling McBride that she was free to go).

Several days later, Murphy texted McBride about getting the third gun. See

Defs.’ Resp. PSOF ¶ 37; R. 272-22, McBride/Murphy Text Msgs. at 1. McBride told

him that she had given the gun to Hicks, so he would need to call Hicks. See

McBride/Murphy Text Msgs. at 2. Murphy eventually went to Hicks’ home, thinking

that he would be receiving another gun, but was instead confronted with Hicks’

attorney. Defs.’ Resp. PSOF ¶ 39. Murphy left the scene without incident. Id. The

next day, Hicks and her counsel attempted to lodge a complaint with the Cook County

Sheriff’s Office but were unable to do so; the Plaintiffs claim that the Sheriff’s Office

refused to take the complaint, but the Defendants maintain that the Plaintiffs needed

to notarize the complaint first and failed to do so. See Defs.’ Resp. PSOF ¶ 40.

II. Legal Standard

Summary judgment must be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating

summary judgment motions, courts must view the facts and draw reasonable

inferences in the light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make

credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,

704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form

that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking

summary judgment has the initial burden of showing that there is no genuine dispute

and that they are entitled to judgment as a matter of law. Carmichael v. Vill. of

Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden

is met, the adverse party must then “set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256.

III. Analysis

A. New Claims

As a threshold matter, the Plaintiffs advanced several new claims in their

response brief, alleging that the Defendants: (1) violated the Illinois prohibition

against police negotiating with arrestees for their freedom under 725 ILCS 109-1 and

725 ILCS 5/107-6; (2) violated both the Thirteenth Amendment ban and the state-law

ban, 720 ILCS 5/10-9(b), on involuntary servitude; (3) violated the prohibition against

forced labor under 18 U.S.C. § 1589; (4) engaged in extortion and intimidation as

defined by 18 U.S.C. § 1951(b) and 18 U.S.C. § 875; and (5) engaged in bribery in

violation of 720 ILCS 5/33-1. R. 271, Pls.’ Resp. Br. at 11-17. The Defendants argue

that they “have been unfairly surprised” by these claims, noting that they did not get

the opportunity to take any discovery on them. See Mears/Lynwood Reply Br. at 3;

see also R. 285, County Defs.’ Reply Br. at 2; R. 282, Murphy/Doyle Reply Br. at 3-6.

In particular, the Defendants point out that Plaintiffs’ counsel made no mention of

adding new claims when he (unsuccessfully) asked to amend the complaint during a

March 2019 hearing—instead, he merely expressed the intent to conform the facts to

those learned in discovery. See Mears/Lynwood Reply Br. at 2; R. 278, 3/21/19

Hearing Tr.

The Defendants are correct that the Plaintiffs’ new claims constitute an

improper attempt to substantively amend the complaint through summary judgment

briefing. Although “a plaintiff generally can alter the legal theories asserted in its

complaint, it cannot alter the factual basis of its complaint at summary judgment[,]”

as this would constitute “an unacceptable attempt to amend the pleadings through

summary judgment argument.” BRC Rubber & Plastics, Inc. v. Cont’l Carbon Co.,

900 F.3d 529, 541 (7th Cir. 2018) (cleaned up).11 In other words, a plaintiff’s alteration

of their original legal theory must be rejected if it also “necessarily alter[s] the

fundamental factual allegations” in their complaint. See id. But even “if a complaint

alters only the plaintiff’s legal theory and not its factual allegations,” the Court must

11This Opinion uses (cleaned up) to indicate that internal quotation marks,

alterations, and citations have been omitted from quotations. See Jack Metzler, Cleaning Up

Quotations, 18 Journal of Appellate Practice and Process 143 (2017).

then consider “the consequences of allowing the case to proceed under the new

theory”—in other words, whether the new theory would cause unreasonable delay,

make it more costly or difficult to defend the suit, or otherwise prejudice the

defendant. Id.

Here, the Plaintiffs’ argument that their claims merely recharacterize already-

alleged facts is unconvincing. See Pls.’ Resp. Br. at 13 n.2. The elements of an illegal

search or seizure claim are different from those of involuntary servitude, which—

according to the Plaintiffs—involves situations in which “the victim had no available

choice but to work or be subject to legal sanction.” Id. at 14 (cleaned up). In fact, the

Plaintiffs’ five new substantive claims appear to be “premised on a vast conspiracy

theory to enslave random citizens.” Murphy/Doyle Reply Br. at 4. See also, e.g., Pls.’

Resp. Br. at 6 (“Prior to encountering Plaintiffs, Defendants engaged in a conspiracy

to violate the constitutional rights of Cook County citizens … .”); id. at 7 (“Given the

testimony of the Plaintiffs that Officers Murphy, Mousel, and Mears, immediately

raised the idea of trading guns for their freedom … a reasonable jury could find that

officers had agreed to abuse their police authority to escalate pressure on citizens to

work for the police.”). This is not a situation where, for example, the Plaintiffs decided

to add an illegal-seizure claim based on the Illinois equivalent of the Fourth

Amendment, Ill. Const. art. I, § 6, so no new factual exploration would be needed.

Instead, the Plaintiffs just declare ipse dixit that there is no prejudice—but offer no

substantive analysis or explanation of the elements of the new claims and how they

would fit the existing facts. So “it seems likely that [the Defendants] … would have

to engage in substantial additional discovery and thus be prejudiced ... .” See Johnson

v. Methodist Med. Ctr. of Ill., 10 F.3d 1300, 1304 (7th Cir. 1993); see also

Murphy/Doyle Reply Br. at 4-5 (“If allowed, these claims would fundamentally change

the case from a garden-variety false arrest/illegal search and seizure lawsuit to a

broad scale conspiracy on par with a class action.”). After years of discovery—not to

mention massive opening summary judgment filings—“[t]here must be a point at

which a plaintiff makes a commitment to the theory of its case.” Johnson, 10 F.3d at

1304. Here, the time for amending the joint complaint to add substantive claims is

long past.

B. Smith’s Illegal Seizure Claim

1. Traffic Stop and Arrest

Turning now to the properly asserted claims, the County Defendants argue

that “Smith’s allegation of illegal seizure is baseless” because “probable cause

[existed] to both seize and arrest him.” R. 253 at 8-9. Like an arrest, a traffic stop also

constitutes a seizure under the Fourth Amendment “even though the purpose of the

stop is limited and the resulting detention quite brief.” Brendlin v. California, 551

U.S. 249, 255 (2007) (cleaned up). But in contrast to a full-blown arrest, there are

instances when a traffic stop can be made based on reasonable suspicion (which is

short of probable cause). See, e.g., United States v. Miranda-Sotolongo, 827 F.3d 663,

666 (7th Cir. 2016) (“A traffic stop is reasonable when the officer has reasonable

suspicion that criminal activity is afoot, which can extend to violations of traffic

laws[.]” (cleaned up)). The difference is that the investigative steps taken during

traffic stops that are justified only on reasonable suspicion must be reasonably

related to the grounds for suspicion in the first place. See Hiibel v. Sixth Jud. Dist.

Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 185 (2004). In contrast, a traffic stop

based on probable cause allows an officer to arrest the driver, to search the driver

incident to arrest, and to conduct a search incident to arrest of the vehicle if it is

reasonable to believe that evidence relevant to the crime of arrest might be found

inside. See Arizona v. Gant, 556 U.S. 332, 338-39, 343 (2009).

In any event, the existence of probable cause is an absolute bar to an illegal-

seizure claim under the Fourth Amendment. See Friedman v. Vill. of Skokie, 763 F.2d

236, 239 (7th Cir. 1985); see also R. 253 at 9. But an officer’s “subjective intentions

play no role in [the] probable cause inquiry.” Valance v. Wisel, 110 F.3d 1269, 1275

(7th Cir. 1997). And while it is true that the probable-cause analysis turns on the

information known to the officer at the time of the seizure, see Gower v. Vercler, 377

F.3d 661, 668 (7th Cir. 2004), that inquiry is then objective, meaning the question is

whether a reasonable officer had probable cause to make the arrest. Here, it is

undisputed that Smith was arrested after he told officers that he did not have a valid

driver’s license, Pls.’ Resp. County DSOF ¶¶ 13-14. Because probable cause existed

to arrest him, all of the Defendants are entitled to summary judgment as to Smith’s

arrest.

But there is still the issue of whether the traffic stop itself was reasonable in

the first place. See Pls.’ Resp. Br. at 7, 9-10 (arguing that the officers lacked probable

cause for the traffic stop). The Plaintiffs contend that Smith “had been driving East

on 69th Street for no more than 10 minutes before he passed a mall area at 69th and

Ashland when the individual defendants pulled him over. He had not made any turns

before the traffic stop.” PSOF ¶ 2. See also Pls.’ Resp. Br. at 10 (“[Smith] could not

have failed to signal when turning because he did not make a turn, and the officers

lacked any basis to curb the vehicle.”). In response, the Defendants point to Smith’s

testimony that he did have to make a right turn to get onto 69th Street in the first

place. See County Defs.’ Reply Br. at 2-3; R. 281, Mears/Lynwood Reply Br. at 9; R.

282, Murphy/Doyle Reply Br. at 12. But the evidence is not as clear-cut as either side

says it is.

For one, Smith’s testimony about making (or not making) a right turn onto

69th Street requires careful parsing. At Smith’s deposition, defense counsel asked,

“What was Jasmin doing at the moment you were pulled over?” Smith Dep. at 136:24-

137:1. After Smith answered, defense counsel followed up, “Had you just made a turn

onto 69th Street?”, to which Smith answered, “No.” Id. at 137:6-8 (emphasis added).

Smith then explained that he had picked up a passenger somewhere between

Western and Damen and had been traveling eastbound on 69th Street for “no more

than ten minutes.” Id. at 137:9-17. When defense counsel then asked him whether he

had to turn onto 69th from wherever he was picking up the passenger, Smith said

yes, adding that he turned right onto 69th. Id. at 137:21-138:3. Despite the

Defendants’ contention that “no more than ten minutes” could mean as little as one

minute, Mears/Lynwood Reply Br. at 9, this testimony allows a reasonable jury to

infer that Smith had not made a right turn immediately before getting pulled over,

and that he had been traveling eastbound on 69th for at least a little while. What’s

more, Smith also testified that the officers were not following him—instead, when he

drove past them, they turned right from a mall area near 69th and Ashland and

pulled him over on the right in between Justine and Ashland. Jd. at 138:4-12. See

infra Figure 1.12

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LAt the summary judgment stage, the Court takes judicial notice of Google Maps

images for the general purpose of understanding the relative geographic locations referenced

by the parties. See Fed. R. Evid. 201(b) (‘The court may judicially notice a fact that is not

subject to reasonable dispute because it: (1) is generally known within the trial court’s

territorial jurisdiction; or (2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.”); Cloe v. City of Indianapolis, 712 F.3d 1171, 1177

n.3 (7th Cir. 2013) (“We have taken judicial notice of—and drawn our distance estimates

from—images available on Google Maps, a source whose accuracy cannot reasonably be

questioned, at least for the purpose of determining general distances.”).

In contrast, the County Defendants maintain that “Officer Murphy and Officer

Mousel observed the vehicle occupied by Smith and McBride turn without properly

signaling.” County DSOF ¶ 10; Murphy Dep. 48:7-13, 83:24-84:3; Mousel Dep. at 91:8-

12. Specifically, contrary to Smith’s account, Murphy testified that he was driving

westbound on 69th Street when he saw Smith driving northbound on Marshfield and

then turn right to go eastbound on 69th, at which point Murphy made a U-turn to

pull Smith over. Murphy Dep. at 83:12-84:11. Murphy’s police report, which he

drafted several days after the traffic stop, also says that he saw Smith making a right

turn onto 69th from Marshfield. CCSPD Mem. at 5. On this record, there is a genuine

dispute of material fact. Taking the evidence in the light most favorable to Smith, a

reasonable jury could infer that for the officers to turn right from the mall area at

69th and Ashland and curb Smith’s car (which was traveling eastbound), that mall

area was necessarily located on the south side of 69th St. See supra Figure 1. This

means that the mall area is either the area between Marshfield and Ashland, or the

area between Ashland and Justine, on the south side of 69th. See id. A reasonable

jury could further infer that if the officers were somewhere between Ashland and

Justine, they could not have possibly seen Smith make a right turn onto 69th—from

either Marshfield or another street further west. See id. Similarly, a reasonable jury

could also infer that, even if the officers had been in the mall area between Ashland

and Marshfield, they still could not have possibly seen Smith turn right onto 69th

because there is enough evidence that Smith had not turned onto 69th from

Marshfield at all. See id.; see also, e.g., Smith Dep. at 136:24-137:8 (Smith testifying

that he had not just turned right onto 69th when he was pulled over).

Because there is a genuine dispute on whether the officers saw Smith make a

turn at all, let alone a turn without properly signaling, a reasonable jury could find

that there was no probable cause (or even reasonable suspicion) for the officers to

believe that Smith had committed a traffic violation. On this basis, Smith’s illegal-

seizure claim survives as to Officers Mousel and Murphy—both of whom participated

in the decision to pull Smith over—but limited to the brief period when Smith was

pulled over and before he was arrested for lack of a valid driver’s license. See County

DSOF ¶ 10; Mousel Dep. at 92:14-22 (Mousel testifying that he pointed out Smith’s

alleged traffic violation). See also Martin v. Marinez, 934 F.3d 594, 605-606 (7th Cir.

2019) (“[T]he damages arising from Martin’s incarceration are simply too attenuated

from and unrelated to the Fourth Amendment violation he has proven: a brief

detention unsupported by probable cause or reasonable suspicion. His damages

award was thus properly limited to the harm arising from his unconstitutional

detention before his lawful arrest.”).

But there is no evidence that Dwyer, Gosling, and Mears had any personal

involvement in the decision to pull Smith over. So those three officers are entitled to

summary judgment on that aspect of Smith’s illegal-seizure claim. See Rasche v. Vill.

of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (“[L]iability does not attach unless the

individual defendant caused or participated in [the] constitutional deprivation.”

(cleaned up)). See also, e.g., R. 259 at 6-7; Mears Dep. at 127:18-128:17 (Mears

testifying that he did not see Smith break any traffic laws, he only later found out

why Smith was pulled over, and he could not recall what was said before the traffic

stop because he was in the back seat and “probably on [his] phone[.]”).

a. Qualified Immunity – Traffic Stop

The next question is whether Murphy and Mousel are entitled to qualified

immunity on Smith’s illegal-seizure claim for the traffic stop. Qualified immunity

protects government officials performing discretionary functions from liability if

“their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). To determine if officials are entitled to qualified immunity, courts must

evaluate (1) “whether the plaintiff has alleged a deprivation of a constitutional right,”

and (2) “whether the right at issue was clearly established at the time and under the

circumstances presented.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir.

2012). Courts are permitted “to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first … .”

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Although Smith does not identify a factually analogous case, there is no

question that, at the time of the stop in July 2015, it was—and continues to be—well

established that the Fourth Amendment does not authorize traffic stops absent

reasonable suspicion or probable cause. See, e.g., United States v. McDonald, 453 F.3d

958, 960 (7th Cir. 2006) (“Police can stop an automobile when they have probable

cause to believe that the driver violated even a minor traffic law. … In addition, police

may conduct a brief, investigatory traffic stop if they have reasonable suspicion based

on articulable facts that a crime is about to be or has been committed.” (cleaned up)).

See also Eberhardt v. O’Malley, 17 F.3d 1023, 1028 (7th Cir. 1994) (“This is such an

elementary violation of the First Amendment that the absence of a reported case with

similar facts demonstrates nothing more than widespread compliance with well-

recognized constitutional principles.”). Applied to the concrete facts of this case (at

least the facts when viewed in Smith’s favor), qualified immunity does not apply: a

reasonably jury could find that the officers did not see any traffic violation

whatsoever, and thus clearly had no basis to pull Smith over. So Murphy and Mousel

are not entitled to qualified immunity on Smith’s Fourth Amendment illegal-seizure

claim.

2. Seizure in Mears’ Police Car

One more aspect of Smith’s illegal-seizure claim is at issue. The Plaintiffs

argue that Smith was also seized when “Doyle and Mears forced him to go with them

to pick up Ms. Hicks … .” Pls.’ Resp. Br. at 19. According to the Plaintiffs, Smith was

not free to refuse the officers’ demands for guns, because doing so would have

jeopardized McBride’s safety. Id. at 20. Put another way, Smith is arguing that being

forced to go with the officers to pick up Hicks and retrieve guns constituted an illegal

seizure.13 Of course, an arrest based on probable cause is generally lawful even if the

initial traffic stop was unreasonable. See Martin, 934 F.3d at 605-606. But even “a

seizure that is lawful at its inception can violate the Fourth Amendment if its manner

13Although the stand-alone § 1983 conspiracy claim was dismissed, the Plaintiffs can

still rely on a conspiracy theory of liability. See R. 145, 3/30/18 Opinion at 6, n.5.

of execution unreasonably infringes interests protected by the Constitution.” Illinois

v. Caballes, 543 U.S. 405, 407 (2005). See Sivard v. Pulaski Cty., 959 F.2d 662, 665

(7th Cir. 1992) (“[A] warrantless arrest does not support a claim under § 1983 if the

arresting police had probable cause. That general rule, however, does not preclude

all § 1983 actions for wrongful detentions that follow constitutional arrests.”),

abrogated on other grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence and

Coordination Unit, 507 U.S. 163 (1993).

A jury can reasonably conclude that Smith was indeed “seized” within the

meaning of the Fourth Amendment when he went with Mears and Doyle to pick up

Hicks. A seizure occurs “only if, in view of all the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave[.]”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). This test requires analyzing

the totality of the circumstances and asking “whether a reasonable person would feel

free to decline the officers’ request or otherwise terminate the encounter.” Florida v.

Bostick, 501 U.S. 429, 436 (1991). Here, Smith was arrested by Murphy at the traffic

stop, handcuffed, and then transported to the Command Post in a police vehicle. See

Defs.’ Resp. PSOF ¶ 6; Mousel Dep. at 124:19-21; Smith Dep. at 290:16-24; Pls.’ Resp.

County DSOF ¶ 19; Murphy Dep. at 108:3-6, 125:15-18. Smith was also handcuffed

in Mears’ police car, Smith Dep. at 193:2-8, 307:10-12, and testified that the doors

were locked so that a passenger could not open them from the inside, id. at 199:16-

21. “[T]here can be little question that a suspect placed in handcuffs is not free to

leave and, for all practical purposes, is in police custody.” Monroe v. Davis, 712 F.3d

1106, 1115 (7th Cir. 2013) (cleaned up). See also Arizona v. Johnson, 555 U.S. 323,

333 (2009) (explaining that both drivers and passengers are seized “from the moment

a car stopped by the police comes to a halt on the side of the road.” (cleaned up)).

What’s more, there is enough evidence to dispute the Defendants’ contention

that Smith voluntarily accompanied Mears and Doyle, see, e.g., Murphy/Doyle DSOF

¶ 18; Mears/Lynwood DSOF ¶ 50. For one, McBride testified that the officers “were

making [Smith] go with them … .” McBride Dep. at 187:7-24. And of course, Smith’s

alleged “agreement” to accompany the officers occurred only after Murphy had

already threatened Smith at the traffic stop, telling Smith that if he loved McBride

and wanted to get her out of “this situation,” he would need to produce three

handguns. See PSOF ¶ 9. In fact, Smith testified that two officers at the Command

Post repeated Murphy’s threat. Smith Dep. at 164:1-166:18. Combined with the

handcuffs, this level of coercion readily raises a jury question on whether Smith had

been seized to further the gun plot. Cf. United States v. Strache, 202 F.3d 980, 986

(7th Cir. 2000) (police custody is not dispositive of the issue of voluntary consent “so

long as the potentially coercive effect of custody was mitigated by the

circumstances.”). In sum, these facts raise the inference that a reasonable person in

Smith’s position—handcuffed, stuck in a locked police car, and coerced to help

retrieve illegal firearms in the middle of the night—would not have believed he was

“free to leave.”

A reasonable jury can also infer that Smith’s seizure in Mears’ police car was

unreasonable under the Fourth Amendment because it exceeded the “mission” of

arresting Smith for driving without a valid license. “[T]he ‘Fourth Amendment []

balances the nature and quality of the intrusion on personal security against the

importance of the governmental interests alleged to justify the intrusion[.]’” United

States v. Cherry, 920 F.3d 1126, 1134 (7th Cir. 2019) (quoting United States v.

Hensley, 469 U.S. 221, 228 (1985)). Although the existence of probable cause is an

objective determination, Devenpeck v. Alford, 543 U.S. 146, 152-54 (2004), “the

reasonableness of a seizure … depends on what the police in fact do[,]”Rodriguez v.

United States, 575 U.S. 348, 357 (2015). Specifically, “[a]uthority for [a] seizure …

ends when tasks tied to the traffic infraction are—or reasonably should have been—

completed.” Id. at 349. For example, “[a] seizure that is justified solely by the interest

in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond

the time reasonably required to complete that mission.” Caballes, 543 U.S. at 407.

Essentially, a lawful seizure based on probable cause does not violate the Fourth

Amendment unless the officers’ conduct infringes on a constitutionally protected

interest, thus changing the lawful character of the seizure. See id. at 407-409 (holding

that an otherwise-lawful seizure did not violate the Fourth Amendment by virtue of

a narcotics dog sniff because there is no legitimate, constitutional interest in

possessing contraband).

Here, the Defendants concede that the “plan” for the ride with Mears and Doyle

was for Hicks to obtain guns from Pudge based on information relayed by McBride.

See, e.g., Murphy/Doyle DSOF ¶¶ 7-9; Mears/Lynwood DSOF ¶¶ 38, 49; County DSOF

¶¶ 28, 36, 38; R. 261 at 6. There is no evidence that Smith was offered leniency for

his own arrest if he went with Mears and Doyle (or obtained firearms), nor is there

evidence that the plan was at all related to him driving without a license. In fact,

Smith was not even processed for booking when he was taken to the Command Post,

nor was an arrest report ever created for him. See Pls.’ Resp. Br. at 5, 8, 10; Murphy

Dep. at 76:9-11. See also Sullivan Dep. at 14:3-15:1, 33:15-34:7 (testifying that every

arrestee, even if released without charges, must get an arrest report and be

documented in the I-CLEAR system). Although probable cause existed to support the

initial arrest, the record permits a reasonable jury to conclude that forcing Smith to

help Mears and Doyle unreasonably exceeded the purpose of the arrest, transforming

its lawful character into an unreasonable seizure. See Dunaway v. New York, 442

U.S. 200, 214-15 (1979) (“[T]he Fourth Amendment was meant to prevent wholesale

intrusions upon the personal security of our citizenry … .” (cleaned up)).14

But the only Defendants who could be held liable for Smith’s seizure during

the ride with Mears and Doyle are those who knew that the ride exceeded the scope

of the initial arrest. In other words, to hold anyone liable for his seizure in Mears’

14There is also evidence that officers removed Smith’s handcuffs at some point after

he arrived at the Command Center, but then handcuffed him again before the ride with

Mears and Doyle. Compare Smith Dep. at 290:16-24 (testifying that he was handcuffed to the

back when taken to the Command Center), with id. at 193:2-8, 307:10-12 (testifying that he

was handcuffed to the front on the way to Hicks’ house). Although Smith also testified that

an unnamed officer did not remove the handcuffs “at any point,” the question referenced a

single officer in the specific context of Smith being pulled out of the police vehicle at the

Command Center—in other words, Smith’s testimony does not preclude the handcuffs being

removed at another point or by another officer. See id. at 164:21-23. These facts—especially

considering that officers later gave Smith his keys back and allowed him to drive away

without a valid license, Defs.’ Resp. PSOF ¶ 26—raise the inference that when Smith was

seized during the ride with Mears and Doyle, the officers had already decided not to charge

him for driving without a license.

police car, Smith must show that (1) the particular Defendant knew McBride was

being set-up; and (2) the Defendant personally participated in or caused Smith’s

seizure. Starting with the latter, the personal-involvement requirement of § 1983 is

satisfied as to Mears because he was the one who drove Smith to pick up Hicks and

retrieve the firearms. There is also enough circumstantial evidence that Murphy

orchestrated the plan to set-up McBride and extort illegal firearms for a jury to infer

that Murphy caused or was involved in the decision to force Smith to help Mears and

Doyle. See, e.g., Smith Dep. at 153:3-15 (testifying that Murphy told him to obtain

three guns if he wanted to get himself, McBride, and the car out of the “situation”).